Brett Kavanaugh was nominated by President Trump earlier this year to replace Anthony Kennedy on the Supreme Court.
This infographic tells Kavanaugh’s story. As we outline his career and judicial decisions, we illustrate how they correspond with “conservative” views by bringing in the findings of a set of surveys.
From the time Kavanaugh was in law school, he became associated with organizations considered conservative. His mentor at Yale Law was George Priest, who was involved with the university’s chapter of the Federalist Society. Scrolling through his early career, it becomes more and more clear that he works for and gains increasing influence from Republicans. By the time his career manifests, it’s easy to call him “conservative.”
Breaking it down with surveys
But what does “conservative” actually mean?
We used the findings of surveys by the Pew Research Center and a team of academic researchers to help characterize views and policy positions which tend to be held by Republicans. And then we correlated the viewpoint statements with the stances Kavanaugh has taken in his career.
Business liberty over regulation
Republicans would rather the government let businesses operate freely and have fewer government services than to have greater regulation of businesses (Pew Research Center, Independents Oppose Party in Power…Again, Section 3).
Judge Kavanaugh, having served on the D.C. Circuit Court of Appeals, has produced a large record on issues of administrative agency power. His decisions in this area show he supports less regulation. Can the EPA regulate greenhouse gases? Kavanaugh, like Scalia would have said no, not under the Clean Air Act because the Clean Air Act wasn’t meant to address greenhouse gases. Can the FCC regulate broadband services under a law that came on the books before the internet revolution? Kavanaugh said no, dissenting from his court’s conclusion.
Kavanaugh believes courts should not allow agencies to expand their regulatory jurisdiction – especially not on major regulatory issues – without specific acts of Congress. It’s Congress’ job to make policies on such major questions. This conservative view tends to leave businesses unregulated for long periods because Congress is not able to legislate as quickly as agencies can act.
A related issue was presented in a case challenging the structure of the Consumer Financial Protection Bureau. The CFPB is an independent agency, which means the President cannot fire the head of the CFPB without good reason. Kavanaugh argued the fire-only-for-cause structure violated the Constitution. He argued the President needs to be able to keep the agencies under control.
Traditional customs and religious norms
Conservatives tend to respect the status quo and current social expectations. They value “respect, commitment, and acceptance of the customs that traditional culture provide” and favor “restraint of actions, inclinations, and impulses likely to upset or harm others and violate social expectations or norms.” (Atlantic discussion of academic study).
It’s hard to give “social expectations” a definition without reference to the expectations which prevail currently. It happens that today, in the United States, Christianity is the socially respected religion and Christianity’s views are often supported in the status quo.
Indeed, respect for Christian views has come out in Kavanaugh’s career, with support in the name of tradition. Kavanaugh supported a reference to God in the Presidential oath because it’s a “long-term practice,” (Newdow v. Roberts, 2010). In 2017 he supported a statement by Rehnquist against abortion because abortion is not in the “traditions and conscience of our people.” Earlier, while Kavanaugh was in private practice, he took a questionable position on the First Amendment to argue that student-led prayer at a public school football game is acceptable, although it turned out to have serious Establishment Clause problems (Santa Fe ISD v. Doe).
Exclusivity, like tradition, is always easier to support if your social, cultural or economic group is in power. Republicans are less willing than Democrats to support empathetic positions towards outsiders; they value “control or dominance over people and resources” more.
Kavanaugh made a showing of American exclusivity recently in his unwillingness to extend the right to an “immediate abortion” to an unlawful minor in government detention (Jane Doe v. HHS). Earlier, when Kavanaugh was in private practice, he wrote an amicus brief on behalf of the Miami-based relatives of Elián González over Elian’s Cuban father in the custody dispute. Elián was the Cuban minor whose story made headlines after his mother died in transit to seeking refuge with him in the U.S.
In a connection between religion and exclusivity, Kavanaugh wrote a dissent saying that a religious nonprofit organization should be able to avoid having any “complicity” with its employees gaining access to contraception (Priests for Life v. HHS). The Affordable Care Act and federal regulations mandated contraceptive coverage of employer-sponsored health plans, but the government allowed religious organizations to alert the insurers or they government if they disagreed so that the insurers could cover it in lieu. But the Priests for Life organization argued that providing the notice would make them complicit in giving contraceptive coverage, which violated their First Amendment rights. Kavanaugh agreed that the government had a compelling interest in providing contraception coverage, but he also respected the organization’s complicity argument. Kavanaugh would have allowed the religious organization to send a very basic notice – one stating merely that they object to providing contraceptive coverage – to the government to alert the government that it needed to cover.
Judges are not supposed to make decisions based on their political views, but they happen to. This goes for judges on both sides of the political spectrum. As the infographic above shows, Brett Kavanaugh, in general, is not an outlier.
It’s important to note, however, that judges of opposing political views use different methods of interpretation when they review the Constitution and other laws. The methods (textualism, originalism) which conservative judges tend to follow end up keeping the law in the status quo. As this report discusses, tradition and exclusivity are conservative preferences, which means the status quo often will bring an outcome desired by a conservative viewpoint. That’s why, when it comes to judge being right or wrong, the pre-textual debate is often over the means of interpretation rather than the ideological view.
Kavanaugh’s confirmation hearings start on September 4, 2018.
See SCOTUSblog coverage of Kavanaugh here.